24:0479(52)NG - NTEU and DOE -- 1986 FLRAdec NG

[ v24 p479 ] 24:0479(52)NG
The decision of the Authority follows:

24 FLRA No. 52
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF ENERGY
Agency
Case No. 0-NG-983
19 FLRA No. 24
SUPPLEMENTAL DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The Authority issued
its original decision in this case in 19 FLRA No. 24 and subsequently
vacated its decision as to Union Proposal 2. This case concerns only
the negotiability of that proposal. We find the proposal negotiable.
Union Proposal
Article 22, Reduction in Force, Part II, Section 5
The filling of any bargaining unit vacancy within the
competitive area for which bargaining unit employees in that area
who will be affected by RIF are eligible will be suspended from
the date of the initial RIF notice to affected employees until the
effective date of the RIF.
II. Positions of the Parties
The Agency contends that the proposal violates its right to hire
under section 7106(a)(2)(A) because it prevents management from filling
vacant positions. The Agency claims that, by preventing management from
filling positions, the proposal would not allow employees to exercise
their bumping and retreat rights under regulations issued by the Office
of Personnel Management. The Agency argues that the proposal is neither
a procedure nor an appropriate arrangement under section 7106(b)(2) and
(3) of the Statute.
The Union states that its proposal would allow employees to take full
advantage of bumping and retreat rights and other reassignment
possibilities. The Union contends that the proposal only delays the
filling of vacant positions until a reduction in force (RIF) has been
carried out. It argues that the proposal is a negotiable procedure in
that it does not prevent the Agency from acting at all.
III. Analysis
The Union's proposal would suspend the filling of any vacant
bargaining unit position for which employees affected by a RIF would be
eligible from the date a RIF notice is received by the affected
employees until the effective date of the RIF action. The Union states
that the proposal is intended to allow affected employees both to
exercise their bumping and retreat rights and to take advantage of
possible reassignment to such vacant positions. Union Response at 3.
We accept the Union's interpretation and find that, contrary to the
Agency's contentions, the proposal would not affect the rights of
employees to bump and retreat into positions under regulations issued by
the Office of Personnel Management and set forth at 5 CFR Part 351 (the
OPM RIF Regulations).
If the Agency decides to fill a vacancy covered by the proposal
during a RIF, the proposal only requires the Agency to either fill that
vacancy with an eligible bargaining unit employee affected by the RIF or
delay filling the vacancy until the RIF is over. Hence, the proposal
merely delays management's exercise of its rights to select an employee
from any appropriate source under section 7106(a)(2)(C)(ii) and,
correlatively, to hire from outside the bargaining unit under section
7106(a)(2)(A). This delay only would occur in very limited
circumstances when (1) there is a qualified individual in the bargaining
unit, (2) that employee would be affected by the RIF, and (3) management
decides not to select that employee.
From these facts, it is our conclusion that the proposal would not
impose any substantive criteria on management's exercise of its rights.
Rather, the proposal would establish a procedure for management to
follow in exercising its rights -- albeit one which, under the very
narrow circumstances outlined above, would delay management's ability to
select from appropriate sources other than the bargaining unit until
after the RIF. Such a procedure is negotiable under section 7106(b)(2)
because it delays but does not prevent management from acting at all to
exercise its rights. American Federation of Government Employees,
AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom.
Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981).
Therefore, we would not reach the question of whether the proposal is an
"appropriate arrangement" under section 7106(b)(3).
This case is distinguishable from National Federation of Federal
Employees, Local 1332 and Headquarters, U.S. Army Materiel Development
and Readiness Command, Alexandria, Virginia, 3 FLRA 611 (1980), where
the Authority held nonnegotiable a proposal requiring a hiring freeze
because it was integrally related to management's right under section
7106(b)(1) to determine the numbers and types of employees assigned to
an organizational subdivision. In that case the Authority found the
proposal prevented the agency from hiring new employees of the requisite
types and grades in sufficient number while the freeze was in effect.
Unlike the proposal in U.S. Army Materiel Development and Rediness
Command, the proposal in this case only delays the Agency filling a
vacancy when the Agency decides not to select an eligible bargaining
unit employee affected by the RIF. This proposal does not prevent the
Agency from hiring additional employees from outside the unit when there
are no eligible employees within the unit. Consequently, this proposal
does not affect the Agency's ability to determine the numbers and types
of employees needed to perform its work.
While not disputed in this case, it is clear that unlike the proposal
in the Authority's Decision and Order on Remand in American Federation
of Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
Bureau of the Census, Washington, D.C., 14 FLRA 801 (1984), affirmed in
the Authority's Decision and Order on Motion for Reconsideration (July
11, 1985), affirmed sub nom. American Federation of Government
Employees, Local 2782 v. FLRA, No. 85-1562 (D.C. Cir. October 21, 1986),
and cases based on that decision, the proposal in this case is not
inconsistent with Requirement 4 of subchapter 1-4, chapter 335 of the
Federal Personnel Manual (FPM). Requirement 4, which provides for an
agency's right to fill positions from any appropriate source, applies to
positions filled through merit promotion procedures. Requirement 4 does
not apply to position changes permitted by reduction-in-force
regulations. See subchapter 1-5(a)(5) and (b)(2) of FPM chapter 335.
Since section 351.201(b) of the OPM RIP regulations gives an agency
discretion to fill vacant positions during a RIF with affected
employees, the vacant positions covered by the Union's proposal are not
subject to the competitive procedures set forth in chapter 335 of the
FPM.
A dictum in National Federation of Federal Employees, Local 1450 and
U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986)
states otherwise and will not be followed. To the extent that the
proposal in that case concerns position changes permitted by the RIF
regulations, Requirement 4 would not apply to that proposal. Proposals
which concern the filling of positions after the effective date of a
RIF, however, even if the proposals concern employees adversely affected
by the RIF, are subject to the provisions of chapter 335. See American
Federation of Government Employees, AFL-CIO, Local 2677 and Department
of Health and Human Services, Office of Community Services, 21 FLRA No.
22 (1986), petition for review filed sub nom. AFGE, Local 2677 v. FLRA,
No. 86-1287 (D.C. Cir. May 19, 1986).
IV. Conclusion
For the reasons discussed above, we conclude that the Union's
proposal is within the duty to bargain. /1/
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning Union Proposal 2.
Issued, Washington, D.C., December 15, 1986.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Opinion of Chairman Calhoun
In agreement with my colleagues, I find that the proposal is
negotiable. However, I reach this conclusion based on a different
analysis from that in the majority opinion.
1. Right to Select
If the Agency decides to fill a vacancy covered by the proposal
during the period covered by the freeze, the Union's proposal would
require the Agency to reassign an employee affected by the RIF who is
eligible to the vacant position. Union Response at 3. In my view, this
limitation would interfere with management's right under section
7106(a)(2)(C)(ii) to make selections for positions from any appropriate
source. See National Federation of Federal Employees, Local 108 and
U.S. Department of Agriculture, Arkansas State Office of the Farmers
Home Administration, 14 FLRA 19 (1984) (first sentence of Proposal 5).
I agree with my colleagues, for the reasons stated in the majority
opinion, that the proposal is not inconsistent with Requirement 4 of
subchapter 1-4, chapter 335 of the FPM.
2. Right to Hire
Management's right under section 7106(a)(2)(A) to hire from outside
the agency constitutes one "appropriate source" from which an agency may
make selections for positions. I find that the Union's proposal would
limit the sources from which the Agency may fill vacant positions
covered by the proposal. During the RIF, the Agency could only fill
those positions with eligible employees who would otherwise be subject
to the RIF. The Agency would be prevented during the RIF from
exercising its right to hire from outside. If the Agency does fill the
vacant position with an affected employee prior to the effective date of
the RIF, it could no longer exercise its right to hire for that position
from outside the Agency after the RIF. The proposal would therefore
interfere with the Agency's right to hire employees. Consequently, I
find that the proposal directly interferes with management's right to
hire and does not constitute a procedure under section 7106(b)(2) of the
Statute.
3. Appropriate Arrangement
We vacated our original decision as to this proposal because it
relied upon the decision as to Union Proposal 1 in Association of
Civilian Technicians, Montana Air Chapter and Department of the Air
Force, Montana Air National Guard, Headquarters 120th Fighter
Interceptor Group (ADTAC), 11 FLRA 505 (1983), which was reversed and
remanded to the Authority by the U.S. Court of Appeals for the District
of Columbia Circuit in Association of Civilian Technicians, Montana Air
Chapter v. FLRA, 756 F.2d 172 (D.C. Cir. 1985). The D.C. Circuit's
decision directed the Authority to determine whether Union Proposal 1,
which also concerned a freeze on hiring during a RIF, constituted an
appropriate arrangement under section 7106(b)(3) of the Statute. In its
Decision and Order on Remand in Association of Civilian Technicians,
Montana Air Chapter and Department of the Air Force, Montana Air
National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20
FLRA No. 85 (1985), petition for review filed sub nom. Association of
Civilian Technicians, Montana Air Chapter v. FLRA, No. 86-1057 (D.C.
Cir. Jan. 23, 1986), the Authority found that Union Proposal 1 did not
constitute an appropriate arrangement under section 7106(b)(3) because
it excessively interfered with the agency's ability to provide the
numbers and types of employees to perform the agency's work.
In view of the Agency's claim that the proposal is not an appropriate
arrangement and the decision of the D.C. Circuit in Montana Air Chapter,
I will consider whether the proposal in this case, which also concerns a
hiring freeze, constitutes an appropriate arrangement. /2/ The proposal
was intended as an arrangement for employees adversely affected by the
Agency's exercise of its right to layoff employees. The event giving
rise to the proposed arrangement -- a RIF -- is a matter which
significantly affects employees but is caused by circumstances which are
not within their control. The proposed arrangement would benefit
employees by ensuring that employees who would otherwise be separated
because of a RIF are placed in vacant positions for which they are
eligible before the Agency seeks outside applicants.
Regarding the burden the arrangement would place on the Agency's
exercise of its rights, as discussed above, the proposal would interfere
with the Agency's rights to hire and to make selections from any
appropriate source. Although the proposal would interfere with the
Agency's rights to hire and select, I find that the interference with
the Agency's ability to carry out its mission would not be substantial.
The proposal would not require the Agency to fill a vacant position if
it chooses not to do so. Also, if the Agency decides to fill a vacancy,
the proposal would not require it to fill the position with an employee
it has not found to be qualified to perform the duties of that position.
While the Agency would be prohibited from seeking applicants from
outside the competitive area during the RIF, the Agency still has
discretion to either fill the vacancy with an eligible employee from
within the affected area or fill it from any appropriate source after
the effective date of the RIF. By contrast, the proposal in Montana Air
Chapter which we found to excessively interfere with management's rights
would have prevented management from filling vacancies even if there
were no qualified employees available. Consequently, in my view, the
Union's proposal does not excessively interfere with the Agency's
exercise of its rights and constitutes an appropriate arrangement under
section 7106(b)(3).
Issues, Washington, D.C., December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun concurs that the proposal is negotiable for the
reasons set forth in his separate opinion. In finding the proposal to
be within the duty to bargain, we make no judgment as to its merits.
(2) In National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA No. 4 (1986), we set forth the
factors we will consider in determining whether a proposed arrangement
for employees adversely affected by an agency's exercise of its section
7106(a) or (b)(1) rights is "appropriate" for negotiation within the
meaning of section 7106(b)(3), or whether it is inappropriate because it
would "excessively interfere" with the exercise of management's rights.